An oil and gas industry association has sued the U.S. Bureau of Land Management (BLM) and U.S. Forest Service (USFS) over instructional memoranda purportedly directing federal employees to ignore the categorical exclusion provisions of the Energy Policy Act of 2005 (Act). W. Energy Alliance v. Salazar, No. 10-237 (D. Wyo. 10/21/10). The complaint asks the court to declare invalid rules issued by the agencies on May 17 and June 9, 2010, allegedly directing agency employees to ignore section 390 of the Act. Section 390 exempts from NEPA’s procedural requirements five “minimally intrusive” energy development activities allowed under federal oil and gas leases issued by the Department of the Interior.

The activities exempted by section 390 are those that (i) disturb less than five acres, (ii) are conducted at a site where drilling has occurred within the past five years, (iii) are conducted at sites where drilling is already authorized, (iv) involve placement of a pipeline in an approved right-of-way, and (v) involve “maintenance of a minor activity.” According to the complaint, the new rules prohibit the use of exclusions based on conditions that do not exist in the Act and were adopted without public notice or opportunity for public comment.